Yesterday, Teresa and Giuseppe (Joe) Giudice were indicted on 39 charges, primarily "stem[ming] from false income statements on loan and mortgage documents and failure to file tax returns." Here is a copy of the indictment. While the potential trial would be held in federal court -- the United States District Court for the District of New Jersey -- New Jersey state privilege law would apply pursuant to Federal Rule of Evidence 501. So, what does that mean?

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication.

Many states have crime-fraud exceptions to their confidential marital communications privileges, meaning that, in those states, one Giudice could testify against the other Guidice regarding private conversations in which they planned the crimes (if, for instance, one of the two struck a plea deal).

In New Jersey, however, that is not the case. In State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013), the trial judge engrafted a crime-fraud exception onto New Jersey Rule of Evidence 509. The Superior Court of New Jersey, Appellate Division, then removed this new appendage, concluding as follows:

We must disagree with the trial judge's reasoning. The fact that the spousal testimonial privilege was at issue in [prior cases] does not mean that we are free to create exceptions to other privileges. The fact that the Legislature codified a crime-fraud exception to the attorney-client privilege does not mean that we can add that exception to the marital communications privilege because the privileges are “akin”....Rather, under the Supreme Court's decisions in Byrd and Mauti, we may not engraft a crime-fraud exception onto the marital communications privilege.

So, what would happen if the prosecutor wants to get one Giudice to testify about private communications with the other Giudice? No (Giu)dice. And while the fact that the Giudices now have most of their lives recorded might mean that their current conversations are not confidential, the charged crimes allegedly occurred before their reality show, meaning that the privilege contained in New Jersey Rule of Evidence 509 should apply (although it appears that some of the allegations in the indictment relate to failing to disclose income from their TV show in bankruptcy filings).

The stand your ground statute speaks only to criminal immunity, but, if I were representing a child in an expulsion hearing, I would press the fact that the child was only acting in a way that the law affirmatively protects and it would be inconsistent for a school to punish a child for something the law says he or she can do. Of course, this only shows how absurd stand your ground is. Many schools take the position that when a fight occurs and both students act with violence, there are no innocent parties. In other words, schools expect students to deseclate a situation or be prepared to suffer the consequences. Application of stand your ground to school grounds obviously sends the opposite message.

I agree with Professor Black and wanted to highlight another interesting Stand Your Ground case, this one from South Carolina.

Osagie
K. Obasogie (UC Hastings) has a powerful piece in the New York Times highlighting, among other things, a fascinating example of mistaken DNA identification.
Available here

It appears that paramedics inadvertently transferred DNA from a severely intoxicated patient they encoutered on one call to a homicide victim they tried to resuscitate on another. Based on the subsequent DNA hit, prosecutors charged the drunk guy with murder. (The charges were dropped after five months.) As Prof. Obasogie notes, the
case might have taken an even more tragic path if the intoxicated patient did not have a
well-documented alibi.

For local news coverage of the case including the “mystery
about DNA in the case” see here

When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer's question.

According to the article, Frances Watson, a professor at IUPUI’s Robert H. McKinney School of Law, Salinas

could lead to more informal questionings where it becomes the suspect’s word against the police. In Indiana, this is less of a problem since Rule of Evidence 617 requires such questionings to be electronically recorded.

Back in May 2009, I posted the initialSubmission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 49 online law review supplements, including (according to U.S. News), online law review supplements at:

“There is no First Amendment
testimonial privilege, absolute or qualified, that protects a reporter from
being compelled to testify by the prosecution or the defense in criminal
proceedings about criminal conduct that the reporter personally witnessed or
participated in, absent a showing of bad faith, harassment, or other such
non-legitimate motive, even though the reporter promised confidentiality to his
source.”

“we hold that there is no First
Amendment or federal common-law privilege that protects Risen from having to
respond to the government’s subpoena and give what evidence he has of the
criminal conduct at issue”

From the dissent:

“The majority reads narrowly the law governing the
protection of a reporter from revealing his sources, a decision that is, in my
view, contrary to the will and wisdom of our Founders.”

The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment.

Here's my question today: In the 24/7 news cycle, including Anderson Cooper's interview with Juror B37 from the George Zimmerman trial and the 4 other jurors distancing themselves from Juror B37, is the anti-jury impeachment rule no longer necessary or more necessary than ever?

It is a scenario that plays out in criminal courts across
the country: a defendant moves to
preclude impeachment with his prior convictions under Rule 609, the trial court
denies the motion, and the defendant decides not to testify. The scenario is so familiar that the danger
that a defendant will not testify is built into the five-factor framework courts use to
evaluate the admissibility of prior convictions under Rule 609 in its 4th
factor: “the importance of the defendant’s
testimony.” As I have blogged before, it
is an understatement to say that courts struggle to interpret this factor
correctly.

To illustrate, let’s look at two of the most recent cases on
point:

In State v. Blevins, the court ruled that because the defendant’s
testimony was “not particularly
important,” the fourth factor supported the admission of impeachment
(since it wouldn’t be such a big deal if he had been prevented from testifying
by the impeachment).

But in State v. James, the fourth factor supported the admission of impeachment
for the exact opposite reason, because “James's testimony was important.”

And here is the punchline:
these two cases are from the same
court (the Minnesota Court of Appeals) in
the same month (July 2013).

A specific objection is required to preserve the issue for appeal. See rule 103. However, the objection need not be made contemporaneously with the objectionable act if the jury is present. The objection can be made at the next available opportunity when the jury is absent.

So, a party does not need to object to judicial testimony to preserve the issue for appellate review, but a party does need to object to judicial interrogation to preserve the issue for appellate review (although this objection can come outside the presence of the jury). Fair or unfair? Consider the opinion on the Court of Appeals of Minnesota in State v. Prewitt, 2013 WL 3491078 (Minn.App. 2013).

I know many legal experts, including Colin (in the post immediately below), are downplaying
the role that Florida’s Stand Your Ground (SYG) law played in the George
Zimmerman case. And it is true that the
defense narrative of the case fit into a standard definition of self-defense law. But I think SYG played a significant role in
the case for a couple of reasons. Here
is the main one:

It has been fascinating/disturbing to see just how much the media has gotten wrong throughout the course of the George Zimmerman/Trayvon Martin case and its aftermath. The biggest error, of course, has been the focus on Stand Your Ground laws when Florida's Stand Your Ground law was not invoked by the defense. Then, there were the minutes/hours/days after the judge's ruling during which many did not realize that the judge had ruled that the defense could use its animation as demonstrative evidence. Now, in the aftermath of the jury verdict, we have more misreporting, this time concerning the defense's motion against the prosecution based upon alleged Brady violations.

Professor Bellin served as a prosecutor with the United States Attorney’s Office in Washington, D.C. While at the U.S. Attorney’s Office, he argued a number of significant cases before the U.S. Court of Appeals for the D.C. Circuit and the D.C. Court of Appeals, including: United States v. Geraldo, 271 F.3d 1112 (D.C. Cir. 2001) and Fisher v. United States, 779 A.2d 348 (D.C. 2001). Professor Bellin subsequently practiced with the San Diego office of Latham & Watkins where he handled complex litigation matters, and served as a senior attorney for the California Courts of Appeal.

Professor Bellin did his undergraduate studies at Columbia University (summa cum laude) and graduated from Stanford Law School (Order of the Coif), followed by a clerkship with the Honorable Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit. His scholarship includes:

Professor Bellin guest blogged here in the fall of 2011. You can find some of his guest posts here, here, here, here, here, and here. He also did a recent guest post about the admissibiloty of text messages in the Aaron Hernandez case. Professor Bellin's Twitter handle is @BellinJ. His posts will be followed by -JB while my posts will be followed by -CM

One of the big issues in the now-concluding George Zimmerman-Trayvon Martin trial was whether the defense would be able to admit an animation depicting the fatal fight between Zimmerman and Martin. Unsurprisingly, the court concluded that the animation would be inadmissible as substantive evidence to prove that the animation in fact accurately depicted how the fight occurred. The court, however, did deem the animation admissible as demonstrative evidence. As I have noted before,

In contrast to testimonial or documentary evidence, demonstrative evidence is "principally used to illustrate or explain other testimonial, documentary or real proof, or judicially noticed fact. It is, in short, a visual (or other) sensory aid." A diagram of the scene of a crime drawn on a board by a percipient witness who is present at trial to testify would be classic demonstrative evidence. Whereas the diagram illustrates the witness' testimony, it should, technically speaking, add nothing further. In this way and despite its title as "evidence," demonstrative evidence is more of a visual aid than evidence per se because it merely illustrates or "demonstrate[s]" a witness' testimony. Jessica M. Silbey, Judges as Film Critics: New Approaches to Filmic Evidence, 37 U. Mich. J.L. Reform 493, 503 (2004).

Perhaps the most (in)famous example of demonstrative evidence was the failed glove experiment in the O.J. Simpson trial.

Beginning in the 1990s, courts began to set forth tests governing the admissibility of computer animations and other computer generated evidence (CGE), and that's exactly when the District Court of Appeal of Florida, Fourth District, decided Pierce v. State, 671 So.2d 186 (Fla.App. 4 Dist. 1996).

A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

It is rare to see a court discuss either of these hearsay exceptions. But, in Porter v. Quaranttillo, 2013 WL 3368888 (2nd Cir. 2013), the Second Circuit discussed both.